Exhibit 10.2
FORM OF
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of ______________, is by and between STILLWATER
MINING COMPANY, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and ________________ ("Employee").
WHEREAS, the Company desires to employ Employee and Employee desires to be
employed by the Company pursuant to the terms and conditions of this Agreement;
and
WHEREAS, the Company has heretofore determined that it is in the best
interests of the Company and its stockholders to assure that the Company will
have the continued dedication of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company;
and
WHEREAS, the Company has determined it is imperative to diminish the
inevitable distraction of the Employee by virtue of the personal uncertainties
and risks created by a pending or threatened Change of Control, to encourage the
Employee's full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control and to provide the Employee
with compensation and benefits arrangements upon a Change of Control which
ensure that the compensation and benefits to be paid to the Employee are at
least as favorable as those in effect at the time of the Change of Control and
which are competitive with those of other corporations.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
agree as follows:
ARTICLE 1
EMPLOYMENT
The Company hereby employs Employee, and Employee agrees to serve as
___________ for the Company.
ARTICLE 2
TERM
The term of this Agreement shall be for a period commencing on __________
and ending December 31, ___________, unless sooner terminated as hereinafter
provided. The Agreement shall thereafter continue in effect for subsequent one
(1) year terms, commencing January 1, unless altered or terminated as
hereinafter provided; provided, however, that following a Change of Control, as
defined in Section 5.6, the Employment Term shall continue for no less than one
(1) additional year. The period of Employee's employment hereunder, including
any extension or extensions pursuant to the foregoing sentence, from the date of
commencement until the date of expiration or termination of this Agreement, is
referred to hereinafter as the "Employment Term."
ARTICLE 3
DUTIES AND AUTHORITY
Employee agrees, unless otherwise specifically authorized by the Company,
to devote substantially all of his business time and effort to his duties for
the profit, benefit and advantage of the business of the Company, except that
Employee may serve on the boards of directors of other business corporations
that have no business relationship with the Company and which do not compete
with the Company. In performing his duties hereunder, Employee shall have the
authorities customarily held by others holding positions similar to those
assigned to Employee in similar businesses, subject to the general and customary
supervision of the Company's Board of Directors and Chief Executive Officer.
ARTICLE 4
COMPENSATION
4.1 Base Salary. The Company agrees to pay Employee a base salary of
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__________ Dollars ($_____________) per year, payable at the usual times for the
payment of the Company's executive employees, subject to adjustment as provided
herein. Employee's base salary shall be reviewed at least annually and may be
increased, but not decreased, consistent with general salary increases for the
Company's executive employees or as appropriate in light of the performance of
Employee and the Company. Notwithstanding anything herein to the contrary,
Employee's base salary may be reduced in the event of an across-the-board salary
reduction for all executive officers; provided, however, that the percentage
reduction of Employee's base salary shall not exceed the highest percentage
reduction in base salary of any other executive officer.
4.2 Incentive Compensation. Employee shall participate in the Company's
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incentive compensation plans for executive officers of the Company, as in effect
from time to time during the Employment Term. The Company shall adopt an annual
incentive program for executive officers of the Company that will provide for a
performance based cash bonus of an amount to be determined by the Board of
Directors of the Company (the "Annual Bonus") (the target of which shall be
____% of the Employee's base salary and the maximum of which shall not exceed
___% of the Employee's base salary).
4.3 Employee Benefits. Employee shall be eligible to participate in such
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other of the Company's employee benefit plans and to receive such benefits for
which his level of employment makes him eligible, in accordance with the
Company's policies as in effect from time to time during the Employment Term;
provided, however, that Employee shall be entitled to four weeks of vacation
during the initial term of this Agreement and during the term of each extension
hereof.
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ARTICLE 5
TERMINATION
5.1 Termination by the Company Without Cause; Termination by Employee for
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Good Reason.
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(a) The Company shall have the right to terminate this Agreement
without Cause (as defined below) upon ninety (90) days' notice to Employee.
If Employee's employment hereunder is terminated by the Company without
Cause or by Employee for "Good Reason" (as defined below) (other than a
termination involving a Change of Control or by reason of death or
disability), the Company shall pay Employee at the time of such termination
in a lump sum a cash amount equal to _____ percent of his annual base
salary in effect immediately preceding such termination.
(b) For purposes of this Agreement, "Good Reason" shall mean:
(i) A material reduction in Employee's responsibilities,
authorities, or duties;
(ii) Employee's job is eliminated other than by reason of
promotion or termination for Cause;
(iii) The Company fails to pay Employee any amount otherwise
vested and due hereunder or under any plan or policy of the Company,
which failure is not cured within five (5) business days of receipt by
the Company of written notice from Employee which describes in
reasonable detail the amount which is due;
(iv) A material reduction in Employee's base salary except in the
event of an across-the-board salary reduction for all executive
officers;
(v) A material reduction in Employee's aggregate level of
benefits under the Company's pension, life insurance, medical, health
and accident, disability, deferred compensation or savings or similar
plans, except in the event of an across-the-board reduction in such
benefits for all executive officers;
(vi) A material reduction in Employee's reasonable opportunity to
earn incentive compensation under any plan in which Employee is a
participant, except in the event of an across-the-board reduction in
such benefits for all executive officers;
(vii) Employee's office is relocated outside of a 50 mile radius
of ________________ without his written consent;
(viii) The Company and its successor(s) (as described in
subparagraph (ix) below) shall discontinue the business of the
Company; or
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(ix) The failure of the Company to obtain an agreement to
expressly assume this Agreement from any successor to the Company
(whether such succession is direct or indirect by purchase, merger,
consolidation or otherwise, to substantially all of the business
and/or assets of the Company or a controlling portion of the Company's
stock).
Solely for the purposes of Section 5.6, any good faith determination of
Good Reason made by the Employee shall be conclusive.
5.2 Termination by the Company for Cause; Voluntary Termination by
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Employee. Employee's employment hereunder may be terminated by the Company for
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"Cause." For purposes of this Agreement, "Cause" shall mean (i) Employee's
willful and continued failure substantially to perform his duties hereunder for
a period of fifteen (15) days after written notice to Employee by the Company of
each such failure; (ii) Employee's dishonesty in the performance of his duties
hereunder; or (iii) Employee's conviction of a felony under the laws of the
United States or any state thereof. Employee shall have the right to voluntarily
terminate this Agreement upon ninety (90) days' notice to the Company. If
Employee is terminated for Cause, or if Employee voluntarily terminates
employment hereunder other than for Good Reason, he shall be entitled to receive
his base salary through the date of termination. All other benefits, if any,
payable to Employee following such termination of Employee's employment shall be
determined in accordance with the plans, policies and practices of the Company.
5.3 Notice of Termination. Any termination by the Company or by the
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Employee shall be communicated by Notice of Termination to the other party
hereto given in accordance with Article 18 of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated and (iii) if the Termination Date
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than 30 days after the giving
of such notice). The failure by the Employee or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause shall not waive any right of the Employee or the Company,
respectively, hereunder or preclude the Employee or the Company, respectively,
from asserting such fact or circumstance in enforcing the Employee's or the
Company's rights hereunder.
5.4 Termination Date. "Termination Date" means the date of receipt of the
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Notice of Termination or any later date specified therein, as the case may be.
5.5 Termination by Death or Disability. Upon termination of Employee's
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employment due to death of Employee, Employee shall be entitled to his base
salary at the rate in effect at the time of Employee's death through the end of
the month in which his death occurs. Employee's employment hereunder may be
terminated by the Company if Employee becomes physically or
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mentally incapacitated and is therefore unable for a period of one hundred
eighty (180) consecutive days to perform his duties (such incapacity is
hereinafter referred to as "Disability"). Upon any such termination for
Disability, Employee shall be entitled to receive payment of disability benefits
in lieu of salary under the Company's Employee benefit plans as then in effect.
5.6 Termination Following a Change of Control; Benefits.
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(a) In the event there is a Termination Following a Change of Control,
the Agreement shall terminate and Employee shall be entitled to the
following severance benefits:
(i) _____ percent of Employee's annual base salary at the rate
in effect immediately prior to the Change of Control or on the
Termination Date, whichever is higher, payable in a lump sum within
sixty (60) days after the Termination Date;
(ii) _____ percent of the higher of (x) the Employee's target
bonus in effect immediately prior to the Change of Control (or on the
Termination Date, whichever is higher) or (y) the Annual Bonus paid or
payable for the most recently completed fiscal year during the
Employment Term, if any (such higher amount being referred to as the
"Highest Annual Bonus").
(iii) To the extent not theretofore paid or provided, the
Company shall timely pay or provide to Employee any other amounts or
benefits required to be paid or provided or which Employee is eligible
to receive under any plan, program, policy, practice, contract or
agreement of the Company (other than severance pay) to the same extent
that Employee would be eligible therefor if he were employed on a
full-time basis by the Company in the capacity provided for herein for
a period of _____ months after the Termination Date, including
receiving the full benefit of ____ months of employment at the income
levels provided for herein for purposes of any retirement plan
utilizing years of service as a criteria in the provision of benefits
(such other amounts and benefits shall be hereinafter referred to as
the "Other Benefits"); provided, however, that to the extent Employee,
following the Termination Date, becomes employed by another employer
and becomes entitled to receive health insurance benefits from such
employer, the Company's obligation to provide such health insurance
benefits hereunder shall be decreased;
(iv) All accrued compensation (including base salary and
Highest Annual Bonus, each prorated through the Termination Date) and
unreimbursed expenses through the Termination Date. Such amounts shall
be paid to Employee in a lump sum in cash within thirty (30) days
after the Termination Date.
(v) The Employee shall be free to accept other employment
following such Termination, and, except as provided herein, there
shall be no offset of any
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employment compensation earned by the Employee in such other
employment during such period against payments due Employee hereunder,
and there shall be no offset in any compensation received from such
other employment against the continued salary set forth above.
(b) For purposes of this Section 5.6, the following terms shall have
the meanings set forth below:
(i) A "Change in Control" of the Company shall mean and shall be
deemed to have occurred if any of the following events shall have
occurred:
(a) Any person (as defined in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) is or becomes the beneficial owner (as defined in Rule
13d-3 of the Exchange Act), directly or indirectly, of securities
of the Company (not including in the securities beneficially
owned by such person any securities acquired directly from the
Company or its affiliates) representing 30% or more of the
combined voting power of the Company's then outstanding
securities, excluding any person who becomes such a beneficial
owner in connection with a transaction described in clause (i) of
paragraph (c) below; or
(b) the following individuals cease for any reason to
constitute a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any
new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose
appointment or election by the Board or nomination for election
by the Company's stockholders was approved or recommended by a
vote of at least two-thirds (___) of the directors then still in
office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously
so approved or recommended; or
(c) there is consummated a merger or consolidation of the
Company or any direct or indirect subsidiary of the Company with
any other corporation, other than (i) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or
any parent thereof) at least 55% of the combined voting power of
the securities of the Company or such surviving entity or any
parent thereof outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to
implement a recapitalization of the Company
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(or similar transaction) in which no person is or becomes the
beneficial owner, directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by
such person any securities acquired directly from the Company or
its affiliates) representing 30% or more of the combined voting
power of the Company's then outstanding securities; or
(d) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least
60% of the combined voting power of the voting securities of
which are owned by stockholders of the Company in substantially
the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing, a "Change in Control" shall not be
deemed to have occurred by virtue of the consummation of any
transaction or series of integrated transactions immediately following
which the record holders of the common stock of the Company
immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the
Company immediately following such transaction or series of
transactions.
(ii) "Termination Following a Change of Control" shall mean a
Termination of the Employee without Cause by the Company in connection
with or within two years following a Change of Control or a
termination by the Employee for Good Reason of the Employee's
employment with the Company within two years following a Change of
Control.
(iii) "Cause" shall mean:
(a) Misfeasance or nonfeasance by the Employee in the
performance of his duties under this Agreement intended to injure
the Company which has a material adverse effect on the Company's
business or operations, if such failure is not remedied or
reasonable steps to effect such remedy are not commenced within
thirty (30) days after written notice of such violation; or
(b) Employee's conviction of a felony or any crime
involving moral turpitude.
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5.7 Certain Additional Payments by the Company.
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(a) Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that any
payment or distribution by the Company to or for the benefit of the
Employee (whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, but determined without regard
to any additional payments required under this Section 5.7) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or
any interest or penalties are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such interest and penalties,
are hereinafter collectively referred to as the "Excise Tax"), then the
Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Employee of all
taxes (including any interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes (and any interest
and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the
foregoing provisions of this Section 5.7(a), if it shall be determined that
the Employee is entitled to a Gross-Up Payment, but that the Employee,
after taking into account the Payments and the Gross-Up Payment, would not
receive a net after-tax benefit of at least $10,000 (taking into account
both income taxes and any Excise Tax) as compared to the net after-tax
proceeds to the Employee resulting from an elimination of the Gross-Up
Payment and a reduction of the Payments, in the aggregate, to an amount
(the "Reduced Amount") such that the receipt of Payments would not give
rise to any Excise Tax, then no Gross-Up Payment shall be made to the
Employee and the Payments, in the aggregate, shall be reduced to the
Reduced Amount.
(b) Subject to the provisions of Section 5.7(c), all determinations
required to be made under this Section 5.7, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be
made by Price Waterhouse LLP or such other certified public accounting firm
as may be designated by the Employee (the "Accounting Firm") which shall
provide detailed supporting calculations both to the Company and the
Employee within fifteen (15) business days of the receipt of notice from
the Employee that there has been a Payment, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving
as accountant or auditor for the individual, entity or group effecting the
Change of Control, the Employee shall appoint another nationally recognized
accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 5.7, shall be paid by the Company to the Employee within five
(5) days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Company and
the Employee. As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which will not have
been made by the Company should have been made
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("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 5.7(c) and the Employee thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Employee.
(c) The Employee shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten (10) business days after the
Employee is informed in writing of such claim and shall apprise the Company
of the nature of such claim and the date on which such claim is requested
to be paid. The Employee shall not pay such claim prior to the expiration
of the 30-day period following the date on which it gives such notice to
the Company (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If the Company notifies the
Employee in writing prior to the expiration of such period that it desires
to contest such claim, the Employee shall:
(i) give the Company any information reasonably requested by
the Company relating to such claim;
(ii) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company;
(iii) cooperate with the Company in good faith in order to
effectively contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Employee
harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result
of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 5.7(c), the Company
shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of such claim and may, at its sole option, either direct the Employee to
pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company
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shall determine; provided, however, that if the Company directs the
Employee to pay such claim and sue for a refund, the Company shall advance
the amount of such payment to the Employee, on an interest-free basis and
shall indemnify and hold the Employee harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for
the taxable year of the Employee with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder
and the Employee shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by the
Company pursuant to Section 5.7(c), the Employee becomes entitled to
receive any refund with respect to such claim, the Employee shall (subject
to the Company's complying with the requirements of Section 5.7(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Employee of an amount advanced by the Company
pursuant to Section 5.7(c), a determination is made that the Employee shall
not be entitled to any refund with respect to such claim and the Company
does not notify the Employee in writing of its intent to contest such
denial of refund prior to the expiration of thirty (30) days after such
determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.
ARTICLE 6
INSURANCE
Employee agrees that the Company may, from time to time, apply for and take
out in its own name and at its own expense, life, health, accident, or other
insurance upon Employee that the Company may deem necessary or advisable to
protect its interests hereunder; and Employee agrees to submit to any medical or
other examination necessary for such purposes and to assist and cooperate with
the Company in preparing such insurance; and Employee agrees that he shall have
no right, title, or interest in or to such insurance.
ARTICLE 7
FACILITIES AND EXPENSES
The Company shall make available to Employee such office space, secretarial
services, office equipment and furnishings as are suitable and appropriate to
Employee's title and duties. The Company shall promptly reimburse Employee for
all reasonable expenses incurred in the performance of his duties hereunder,
including without limitation, expenses for entertainment, travel,
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management seminars and use of the telephone, subject to the Company's
reasonable requirements with respect to the reporting and documentation of such
expenses.
ARTICLE 8
NONCOMPETITION
8.1 Necessity of Covenant. The Company and Employee acknowledge that:
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(a) The Company's business is highly competitive;
(b) The Company maintains confidential information and trade secrets
as described in Article 9, all of which are zealously protected and kept
secret by the Company;
(c) In the course of his employment, Employee will acquire certain of
the information described in Article 9 and the Company would be adversely
affected if such information subsequently, and in the event of the
termination of Employee's employment, is used for the purposes of competing
with the Company;
(d) The Company transacts business throughout the world; and
(e) For these reasons, both the Company and Employee further
acknowledge and agree that the restrictions contained herein are reasonable
and necessary for the protection of their respective legitimate interests
and that any violation of these restrictions would cause substantial injury
to the Company.
8.2 Covenant Not to Compete. Employee agrees that from and after the date
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hereof during the Employment Term and for a period of one (1) year after the end
of the Employment Term, he will not, without the express written permission of
the Company, which may be given or withheld in the Company's sole discretion,
directly or indirectly own, manage, operate, control, lend money to, endorse the
obligations of, or participate or be connected as an officer, director, 5% or
more stockholder of a publicly-held company, stockholder of a closely-held
company, employee, partner, or otherwise, with any enterprise or individual
engaged in a business which is competitive with the Platinum Group Metals
business conducted by the Company. It is understood and acknowledged by both
parties that, inasmuch as the Company transacts business worldwide, this
covenant not to compete shall be enforced throughout the United States and in
any other country in which the Company is doing business as of the date of
Employee's termination of employment.
8.3 Disclosure of Outside Activities. Employee, during the term of his
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employment by the Company, shall at all times keep the Company informed of any
outside business activity and employment, and shall not engage in any outside
business activity or employment which may be in conflict with the Company's
interests.
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8.4 Survival. The terms of this Article 8 shall survive the expiration or
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termination of this Agreement for any reason.
ARTICLE 9
CONFIDENTIAL INFORMATION AND TRADE SECRETS
9.1 Nondisclosure of Confidential Information. Employee has acquired and
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will acquire certain "Confidential Information" of the Company. "Confidential
Information" shall mean any information that is not generally known, including
trade secrets, outside the Company and that is proprietary to the Company,
relating to any phase of the Company's existing or reasonably foreseeable
business which is disclosed to Employee by the Company including information
conceived, discovered or developed by Employee. Confidential Information
includes, but shall not be limited to, business plans, financial statements and
projections, operating forms (including contracts) and procedures, payroll and
personnel records, marketing materials and plans, proposals, software codes and
computer programs, project lists, project files, price information and cost
information and any other document or information that is designated by the
Company as "Confidential." The term "trade secret" shall be defined as follows:
A trade secret may consist of any formula, pattern, device or compilation
of information which is used in one's business, and which provides to the
holder an opportunity to obtain an advantage over competitors who do not
know or use it.
Accordingly, employee agrees that he shall not, during the Employment Term and
for three (3) years thereafter, use for his own benefit such Confidential
Information or trade secrets acquired during the term of his employment by the
Company. Further, during the Employment Term and for three (3) years
thereafter, Employee shall not, without the written consent of the Board of
Directors of the Company or a person duly authorized thereby, which consent may
be given or withheld in the Company's sole discretion, disclose to any person,
other than an employee of the Company or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance by
Employee of his duties, any Confidential Information or trade secrets obtained
by him while in the employ of the Company.
9.2 Return of Confidential Information. Upon termination of employment,
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Employee agrees to deliver to the Company all materials that include
Confidential Information or trade secrets, and all other materials of a
confidential nature which belong to or relate to the business of the Company.
9.3 Exceptions. The restrictions and obligations in Section 9.1 shall not
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apply with respect to any Confidential Information which: (i) is or becomes
generally available to the public through any means other than a breach by
Employee of his obligations under this Agreement; (ii) is disclosed to Employee
without obligation of confidentiality by a third party who has the right to make
such disclosure; (iii) is developed independently by Employee without use of or
benefit from the Confidential Information; (iv) was in possession of Employee
without obligations of
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confidentiality prior to receipt under this Agreement; or (v) is required to be
disclosed to enforce rights under this Agreement.
9.4 Survival. The terms of this Article 9 shall survive the expiration or
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termination of this Agreement for any reason.
JUDICIAL CONSTRUCTION
Employee believes and acknowledges that the provisions contained in this
Agreement, including the covenants contained in Articles 8 and 9 of this
Agreement, are fair and reasonable. Nonetheless, it is agreed that if a court
finds any of these provisions to be invalid in whole or in part under the laws
of any state, such finding shall not invalidate the covenants, nor the Agreement
in its entirety, but rather the covenants shall be construed and/or blue-lined,
reformed or rewritten by the court as if the most restrictive covenants
permissible under applicable law were contained herein.
ARTICLE 10
RIGHT TO INJUNCTIVE RELIEF
Employee acknowledges that a breach by Employee of any of the terms of
Articles 8 or 9 of this Agreement will render irreparable harm to the Company,
and that in the event of such breach the Company shall therefore be entitled to
any and all equitable relief, including, but not limited to, injunctive relief,
and to any other remedy that may be available under any applicable law or
agreement between the parties.
ARTICLE 11
CESSATION OF CORPORATE BUSINESS
This Agreement shall cease and terminate if the Company shall discontinue
its business, and all rights and liabilities hereunder shall cease, except as
provided in Section 5.6 and Article 13.
ARTICLE 12
ASSIGNMENT
12.1 Permitted Assignment. Subject to the provisions of Section 5.6, the
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Company shall have the right to assign this contract to its successors or
assigns, and all covenants or agreements hereunder shall inure to the benefit of
and be enforceable by or against its successors or assigns.
12.2 Successors and Assigns. The terms "successors" and "assigns" shall
----------------------
mean any person or entity which buys all or substantially all of the Company's
assets, or a controlling portion of its stock, or with which it merges or
consolidates.
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ARTICLE 13
FAILURE TO DEMAND, PERFORMANCE AND WAIVER
The failure by either party to demand strict performance and compliance
with any part of this Agreement during the Employment Term shall not be deemed
to be a waiver of the rights of such party under this Agreement or by operation
of law. Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach thereof.
ARTICLE 14
ENTIRE AGREEMENT
The Company and Employee acknowledge that this Agreement contains the full
and complete agreement between and among the parties, that there are no oral or
implied agreements or other modifications not specifically set forth herein, and
that this Agreement supersedes any prior agreements or understandings, if any,
between the Company and Employee, whether written or oral. The parties further
agree that no modifications of this Agreement may be made except by means of a
written agreement or memorandum signed by the parties.
ARTICLE 15
GOVERNING LAW
The parties hereby agree that this Agreement shall be construed in
accordance with the laws of the State of Colorado, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Colorado or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Colorado.
ARTICLE 16
ATTORNEYS' FEES
Prior to a Change of Control, if either party shall commence any action or
proceeding against the other that arises out of the provisions hereof, or to
recover damages as the result of the alleged breach of any of the provisions
hereof, the prevailing party therein shall be entitled to recover all costs
incurred in connection therewith, including reasonable attorneys' fees.
Following a Change of Control, should a dispute arise under this Agreement, or
any action or proceeding be commenced to recover damages as a result of an
alleged breach of the terms of this Agreement, the Company shall be required to
pay the costs of Employee incurred in connection therewith, including reasonable
attorneys' fees.
ARTICLE 17
NOTICE
All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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If to the Employee:
________________
________________
________________
If to the Company:
Vice President, Human Resources
Stillwater Mining Company
HC 54 Box 365
Nye, Montana 59061
ARTICLE 18
COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the Company has hereunto signed its name and Employee
hereunder has signed his name, all as of the day and year first-above written.
STILLWATER MINING COMPANY
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
EMPLOYEE
_______________________________________________
_______________________________________________
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